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Scott v Scott (No 2)

Scott v Scott (No 2)

Case [2022] NSWSC 914 8 July 2022

Costs

Limitation Periods

Unconscionable Conduct

Family Law

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Supreme Court

New South Wales

Medium Neutral Citation: Scott v Scott (No 2) [2022] NSWSC 914
Hearing dates: On the papers; final evidence and written submissions 30 March 2022
Date of orders: 8 July 2022
Decision date: 08 July 2022
Jurisdiction: Equity
Before: Parker J
Decision:
See [118]

Catchwords:
COSTS – indemnity costs – offer of compromise – plaintiff’s offer – family provision proceedings – purported formal offer not specifying how proposed further provision to be borne by other beneficiaries’ shares of estate – whether effective – informal offers – whether failure to accept unreasonable

Legislation Cited:
Civil Procedure Act 1995, s 68
Probate and Administration Act 1898, s 150
Succession Act 2006, ss 59, 60, 65, 72, 99
Uniform Civil Procedure Rules 2005, rr 20.26, 20.27, 26.2, 42.14

Cases Cited:
AAI Ltd v Josipovic (No 2) [2013] NSWSC 1577
Alvarez v Matthews [2021] NSWSC 1551
Bates v Cooke (No 2) [2014] NSWSC 1322
Coote v Coote (No 2) [2021] NSWSC 461
Dawson v ACP Publishing Pty Ltd [2007] NSWSC 542
Dibbs v Emirates(No 2) [2015] NSWSC 1786
Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322
Estate of May Berry, deceased [2016] NSWSC 130
Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd (No 2) [2014] NSWCA 391
Megerditchian v Khatchadourian (No 2) [2020] NSWSC 11
Morrison v Abbott [2012] NSWSC 320
Pang v Fong (No 2) [2014] NSWSC 1924
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Rathswohl v Court (No 2) [2021] NSWSC 505
Sackelariou, Edward v O’Donnell [2018] NSWSC 1651
Scott v Scott [2021] NSWSC 1619
Smallacombe v Lockyer Investment Co Ltd (1993) 42 FCR 97
Whitney v Dream Developments Pty Ltd (2013) 84 NSWLR 311
Vella v Vella (No 2) [2020] NSWSC 1032

Category: Costs
Parties: Coralynne April Scott (Plaintiff)
Charlene Arnel Scott (Defendant)
Representation:
Counsel:
AF Stevens (Plaintiff)
L Clarke (Defendant)
Solicitors:
Dignan & Hanrahan (Plaintiff)
Ray Wehbe & Co (Defendant)

File Number(s): 2020/215861
Publication restriction: Nil

Judgment

These are family provision proceedings on which I delivered judgment in December last year: Scott v Scott [2021] NSWSC 1619. I found that the plaintiff’s application for further provision succeeded. I adjourned the proceedings to allow the parties to agree, if possible, on the form of orders to give effect to my judgment, and on costs.
The parties later agreed on the form of the provision order to be made. Costs remain in dispute and are the subject of this judgment.
The judgment assumes familiarity with my December judgment, to which I refer as “J1”. It also uses abbreviations used in the December judgment. In particular, the Succession Act 2006 is referred to as “the Act”.
The successful plaintiff (“Coralynne”) seeks an order for indemnity costs in her favour. The application is based on several offers to compromise the proceedings, the earliest of which was made in November 2020.
The unsuccessful defendant (“Charlene”) who is the deceased’s executor, contends that Coralynne should receive only an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Scott v Scott (No 2)

Details

AGLC: Scott v Scott (No 2) [2022] NSWSC 914
Case: [2022] NSWSC 914
Decision Date: 08 July 2022

CaseChat Overview and Summary

The case involved Scott as the plaintiff and Scott as the defendant. The matter was heard in the Family Court of Australia, where the dispute pertained to family provision proceedings. The plaintiff sought additional provision from the estate of the deceased, arguing that the initial distribution was inadequate. The defendant argued that the provision made was just and equitable. A central issue in the case was whether the plaintiff's offer of compromise, which was informal and did not specify how additional provision would be met without reducing other beneficiaries' shares, was effective. Another issue was whether the defendant's failure to accept the plaintiff's offer of compromise was unreasonable.

The court considered the nature and requirements of offers of compromise in family provision cases. It noted that while an offer can be effective if it specifies how additional provision will be met, an informal offer that does not provide such details may still be considered. The court found that the plaintiff's offer, despite being informal, could still be effective because it demonstrated a willingness to negotiate and provided a basis for further discussion. The court also held that the defendant's refusal to accept the plaintiff's offer, without any reasonable justification, was unreasonable. This unreasonable refusal led to the award of indemnity costs against the defendant.

In conclusion, the court found that the plaintiff's informal offer of compromise was effective and that the defendant's failure to accept it was unreasonable. The court awarded indemnity costs to the plaintiff. This decision highlights the importance of clear communication and reasonable negotiation in family provision matters.

Orders